- (1.) We have heard Sri Nishant Mishra, learned counsel for the petitioner and Sri Ashok Mehta, learned Senior Counsel assisted by Sri Ashok Singh, learned counsel for the respondents.
(2.) The petitioner is a company and is engaged in fabrication, erection and installation of power sub-stations. In the year, 2010, the petitioner undertook a contract for commissioning of 765 KV sub-station at Unnao from U.P. Power Transmission Corporation and also for erection of a sub-station at Jhoonsi at Allahabad. In this regard, the petitioner sub-contracted the project to M/s. Shakshi Trade Link Private Ltd. The petitioner contended that for execution of the aforesaid project service tax was paid and accordingly claimed Cenvat credit. It transpires that an enquiry was instituted by the respondent under Section 14 of the Central Excise Act. In response thereto, the petitioners appeared and supplied the necessary information and documents. A Writ Tax No. 183 of 2015 was filed questioning the enquiry instituted under Section 14 of the Central Excise Act, which was dismissed by a judgment dated 10th March, 2015. It appears that thereafter the directors of the petitioner's company appeared and their statements were recorded. During the course of the enquiry, it appears that the respondents were insisting that the Cenvat credit availed by the petitioner should be reversed. In spite of these oral directions, the Cenvat credit was not reversed and accordingly a show cause notice dated 20th October, 2015 was issued under Section 73 of the Act directing the petitioner to show cause within 30 days from date of the receipt of the show cause notice as to why recovery should not be made to the tune of Rs. 1,15,27,245/- towards the Cenvat credit that was wrongly availed. This show cause notice was issued by the Commissioner of Service Tax, respondent no.2. It is contended that the show cause notice was received by the petitioner on 21st October, 2015 but before the petitioner could submit a reply, the respondents attached two bank accounts of the petitioner in ICICI Bank and in Central Bank of India on 20th October, 2015. The petitioner, being aggrieved by the action of the respondents in attaching the bank accounts without giving an opportunity to the petitioner has filed the present writ petition. The Court directed respondent nos. 2 and 3, namely, the Commissioner, of Service Tax, Agra and Deputy Commissioner, Agra to file their separate affidavits justifying their action for attaching the bank accounts of the petitioner in violation of the rules. We also directed the respondents to place the original records relating to the proceedings towards the attachment of the bank accounts and satisfaction so recorded. We have perused the original records and the affidavits filed by the respondents. In exercise of the powers contained in 73 of the Finance Act, 1994 read with Section 94, the Central Government promulgated the Service Tax (Provisional Attachment of Property) Rules, 2008 (hereinafter referred to as the Rules of 2008). Rule 3 provides a procedure for provisional attachment of property and Rule 4 provides what property could be attached. For facility, Rule 3 and Rule 4 are extracted hereunder:
(3.) Procedure for provisional attachment of property: (1) If the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, is satisfied that it is necessary or expedient, for the purpose of protecting the interest of revenue, during the pendency of any proceeding under Section 73 or Section 73 of the Act, to attach provisionally any property belonging to a person on whom a notice has been served under sub-section (1) of section 73A or sub-section (3) of Section 73 A of the Act, shall after due verification of the facts, and circumstances of the case, forwarded a proposal for provisional attachment of property of such person, to the Commissioner of Central Excise, in the format annexed to these rules. (2) The Commissioner of Central Excise, on receipt of proposal as specified in sub-rule (1), or on his own, if he is satisfied that circumstances of case justify provisional attachment, may cause service of a notice on such person for provisional attachment, with reasons for initiating action under these rules and the details of property to be attached provisionally, giving opportunity to such person to make submissions in this regard, within fifteen days of service of such notice. (3) Upon consideration of submissions made by such person, in writing or in person or both, the Commissioner of Central Excise may pass an order in writing to attach provisionally any property belonging to such person: Provided no such order shall be issued to attach the personal property of Proprietor or Partners or Directors, as the case may be.;